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TMI Blog2023 (12) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... n Magistrate, Kolkata in Complaint Case No. C-3290/2014 under Section 138 of the Negotiable Instruments Act, convicting the accused/petitioner herein under Section 255(2) of the Code of Criminal Procedure and sentencing him to undergo Simple Imprisonment for 3 months and to pay a sum of Rs. 17,00,000/- (Rupees Seventeen Lakhs) as compensation to the Complainant/Respondent No. 1 herein as per Section 357(3) of Cr.P.C. within 4 months from the date of that order in default, Simple Imprisonment for four months. 2. The Opposite party no.1/Complainant filed the Complaint case alleging there in that the petitioner approached the opposite party No.1 for a loan and accordingly the complainant/opposite party No. 1 granted isolated commercial loan a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h drawn on State Bank of India, Chowringhee Branch, Himalaya House, 38B, Chowringhee Road, Kolkata - 700071 were issued by the accused/petitioner herein being the Director of Bhavyaa Global Limited in the name of Fast Flow Vintrade Private Limited and the payee of the account payee cheques was the said Fast Flow Vintrade Private Limited but the said payee of the cheques did not file the said complaint case against the accused/petitioner herein. The said complaint case was filed by one Vikashh K Agarwal c/o. M/s. Fast Flow Vintrade Private Limited. 6. Mr. Mohinoor Rahaman, learned counsel for the petitioner submits that the opposite party no.1 failed to issue demand notice under Section 138 of the Negotiable Instruments Act, in the name of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xt. 7 i.e. the bank statement. So, now it is clear from the perusal of Ext.1 that the cheque in question was being issued by the accused person and therefore signature thereon belongs to him only.............." 12. So the complainant (P.W.1) has clearly stated that the petitioner herein being the accused director of the company, M/s Bhavyaa Global Limited Company availed the loan and then issued the cheques in this case. 13. Admittedly only the petitioner who was the director of the company has been made a party in the complaint case. The company M/s Bhavyaa Global Limited is not an accused in this case. 14. Learned Counsel for the petitioner has relied upon the judgment of the Supreme Court in Aneeta Hada vs Godfather Travels and Tours ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.- For the purposes of this section,- (a) "company" means any body corporate and includes a firm or other association of individuals; and (b) "director", in relation to a firm, means a partner in the firm." 16. The Supreme Court in Himanshu -versus- B. Shivamurthy & Another, (2019) 3 SCC 797, on January 17, 2019, has laid down that:- "In the absence of the company being arraigned as an accused, a complaint against the appellant was therefore not maintainable. The appellant had signed the cheque as a Director of the company and for and on its behalf. Moreover, in the absence of a notice of demand being served o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the petitioner, where the Court held:- "11. In the present case, the record before the Court indicates that the cheque was drawn by the appellant for Lakshmi Cement and Ceramics Industries Ltd., as its Director. A notice of demand was served only on the appellant. The complaint was lodged only against the appellant without arraigning the company as an accused. 12. The provisions of Section 141 postulate that if the person committing an offence under Section 138 is a company, every person, who at the time when the offence was committed was in charge of or was responsible to the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 255(2) of the Code of Criminal Procedure and sentencing him to undergo Simple Imprisonment for 3 months and to pay a sum of Rs. 17,00,000/- (Rupees Seventeen Lakhs) as compensation to the Complainant/Respondent No. 1 herein as per Section 357(3) of Cr.P.C. within 4 months from the date of that order in default, Simple Imprisonment for four months, are hereby set aside. 29. The petitioner/accused is acquitted of offence punishable under Section 138/141 N.I. Act and discharged from his bail bonds. 30. All connected applications, if any, stands disposed of. 31. Interim order, if any, stands vacated. 32. Copy of this judgment be sent to the learned Trial Court for necessary compliance. 33. Urgent certified website copy of this ju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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